What is “Disabled?”: Ménière’s Disease & the Americans with Disabilities Act (ADA)
By Thomas Tobin, JD ’16, Harvard Kennedy School MPP ’16[*]
The Americans with Disabilities Act (ADA) prohibits American employers from discriminating against individuals due to disability.[1] As a threshold matter, individuals bringing suit under the ADA’s anti-discrimination provisions must demonstrate that they are “disabled.” While individuals with Ménière’s Disease often suffer impairments to their personal and professional lives, are they “disabled” for purposes of the ADA?[2] Legal precedent provides prescient lessons for individuals with Ménière’s Disease as they seek relief for alleged discrimination or unfair termination at work.
Ménière’s Disease often manifests itself in unpredictable, episodic attacks of nausea and vertigo. While Ménière’s Disease is a progressive, long-term condition, many individuals may experience remission for several months and even years between attacks.[3] Unfortunately, the episodic nature of Ménière’s Disease created a challenge for many individuals in proving their “disabled” status under the ADA.
The ADA does not provide protection for “every individual with an impairment who suffers an adverse employment action.”[4] Individuals bringing suit must prove by a preponderance of evidence that they have a disability.[5] “Disabled” status is defined by statute and occurs when an individual suffers from “a physical or mental impairment that substantively limits one or more of the major life activities.”[6] Hearing, walking, and working are among the statutorily-defined major life activities that may be potentially affected by Ménière’s Disease.[7]
In order to prove a “substantial impairment,” an individual must demonstrate that the impact of the “disability” is permanent or long-term.[8] American courts often follow a long-standing rule that intermittent manifestations of disease processes are insufficient to establish a substantial limitation on a major life activity.[9]
Simply being diagnosed with Ménière’s Disease is not sufficient to warrant “disabled” status under the ADA.[10] In Perkins v. St. Louis County Water Company,[11] a construction worker suffering from Ménière’s Disease was repeatedly absent from work and claimed that several of his absences were due to the disease. The worker’s condition caused permanent hearing loss and occasional episodes of vertigo and vomiting. Even though Ménière’s-related episodes caused the worker to miss over two-and-one-half weeks of work, the court ruled that it was insufficient to render him unable to do his job or limit his major life activities.[12] While Perkins could conceivably be read to foreclose the ability of Ménière’s Disease patients from attaining “disabled” status, one judge in the three-judge panel went so far as to specifically note that Ménière’s Disease is not “outside the bounds of disability per se.”[13]
Plaintiffs with Ménière’s Disease have, at times, struggled to marshal adequate evidence to prove their “disabled” status. In one case, a public school teacher sought accommodation for Ménière’s Disease so that she could avoid excessive walking and ascending stairs. [14] Treatment notes found that her problems with Ménière’s Disease were exacerbated by stair-climbing and rocking. Still, her supervisors “openly questioned the nature and existence of her ailments.”[15] Ultimately, her case was dismissed for insufficient evidence that the teacher suffered from a disability that substantially limited a major life activity.[16]
In McGuire v. Miami-Dade County, a computer technician with Ménière’s disease alleged that her condition caused seizures and problems with her mobility and balance.[17] She described her limitations thusly,
I lose balance. I have to lay down. I am dizzy. I vomit a lot. Those are the attacks, but in general when I handle this condition, most of the time I’m dizzy and, at some point, noises start to bother me.[18]
The federal court was unconvinced that the limitations of the employee’s Ménière’s disease were more than temporary.[19] The court called the worker’s allegations “vague” as they did not explain with adequate specificity exactly how her condition affected her or she was affected in comparison to that of the average person in the general population.[20]
Whether an individual is “disabled” is a fact-specific inquiry, often necessitating case-by-case judgment by the courts.[21] Even if a court accepts that Ménière’s Disease is a disabling condition, it must further find that the impairment substantially limits an individual’s major life activity, such as hearing or walking.[22] Ultimately, the court must be convinced that it is a disabling condition rather than an individual’s conduct that resulted in the discriminatory action.[23] The story of Patricia Brennan provides insight on what plaintiffs should guard against when approaching the courts regarding Ménière’s Disease claims.
Illinois social worker Patricia Brennan suffered from Ménière’s Disease, complaining of dizziness, decreased hearing in one ear, vertigo, and loss of balance.[24] She was subsequently terminated, and she brought suit against her former employer claiming it had failed to accommodate her disability. The Brennan court and the parties did not dispute that Ménière’s Disease was an impairment, but they contested whether Brennan was “disabled” as a result of the condition. Even as her doctor had characterized her hearing loss in her left ear as “severe,” the court claimed that she had:
offered no evidence to show how that loss affected her overall ability to hear in comparison to that of an average person in the population, whether the loss was mitigated by the use of a hearing aid and whether, when the loss occurred, it was expected to be temporary or permanent.[25]
The court went on to note that she had an operation restoring her hearing after she was dismissed from her job. Moreover, the court declared that the social worker’s ability to walk was impaired during episodes of vertigo, but the record showed that her walking was not impaired when she did not have vertigo.[26] The court dismissed her claim for insufficient evidence.
It is an unfortunate reality that individuals may suffer from employment discrimination due to their Ménière’s Disease. In order to prevail in court and prove their claim, they must demonstrate evidence of how they are affected by the condition. It is often necessary to provide sufficient evidence to (a) establish that one has Ménière’s Disease and (b) demonstrate how it is disabling in order to prove “disabled” status.
For example, a utility worker at a tire plant was found to suffer from hearing loss and tinnitus after multiple tests. [27] His employer was required to conduct annual hearing tests, the standard threshold shift test, to determine whether the plant caused its workers permanent hearing loss.[28] This worker was dismissed from his job after his employer claimed that he falsified the hearing tests. The court found there was sufficient evidence that he did not adulterate his test results. Instead, he suffered from Ménière’s Disease which would explain his abnormal test results.
In another case, a bank teller in Ohio suffering from Ménière’s Disease was subjected to teasing at work for her vertigo and hearing loss.[29] Even while her hearing loss was self-described as “profound,” the teller’s colleagues and supervisors were “snickering and laughing.” From the available evidence, the court concluded that the teller’s hearing loss was permanent, not temporary.[30] Her former employer claimed that the teller’s non-use of a hearing aid was proof that her hearing could have otherwise been controlled and was not disabling. In this case, the teller testified with specificity and had corroborating doctors’ notes that showed that her Ménière’s Disease had caused total hearing loss in her left ear, a reduction of her hearing in her right ear, and vertigo and constant tinnitus.[31] According to the teller, a hearing aid would be “of no value.”
Ultimately, whether an individual is “disabled” is a fact-intensive inquiry for the courts. To prove that one is “disabled” due to Ménière’s Disease under the ADA means to prove by a preponderance of the evidence that it affects one or more of an individual’s major life activities. Future claimants can learn from past precedent, which all too often has found insufficient evidence to prove “disabled” status. To increase the odds of prevailing, future claimants should assemble available medical evidence to substantiate and corroborate their listing of symptoms, document the extent of their limitations to fundamental life activities due to Ménière’s Disease, and communicate clearly the extent of these limitations to court officials, especially in a deposition. Further, a best practice would have an expert, such as a physician or audiologist, detail specificity exactly how Ménière’s Disease has affected the individual in comparison to that of the average person in the general population.
Obtaining “disabled” status under the ADA is a threshold issue to achieving its statutory protections. The episodic nature of Ménière’s Disease can create a significant barrier for individuals to avail themselves of the ADA’s relief. Such barriers may be especially high if defendants attempt to confine Ménière’s-related impairments to an intermittent manifestation of a disease process not worthy of “disabled” status.[32] By detailing the extent of these impairments, future plaintiffs can express their arguments in terms of major life activities and better present evidence before the court to surpass this critical threshold. In doing so, claimants can further educate courts about the disabling nature of Ménière’s Disease for many individuals and specifically how it has affected them. Documenting the disabling nature of their condition can assist individuals with Ménière’s Disease in obtaining “disabled” status.
[*] Tommy Tobin recently served as Instructor of Law at UC Berkeley’s Goldman School of Public Policy, where he taught a module on food law and policy.
[1] See 42 U.S.C. § 12112(a) (2014).
[2] This article limits its scope to the ADA. While other areas of federal law, such as Veterans Affairs or Social Security Disability, also touch on Ménière’s disease, they are beyond the scope of the present analysis. See 38 C.F.R. § 4.87 (2015) (rating diseases of the ear for Veterans Affairs purposes); Social Security Administration Listing 2.07 (2016) (naming disturbance of labyrinthine-vestibular function and specifically Ménière’s Disease as a basis for benefits).
[3] See Ménière’s disease, Ménière’s Soc’y, http://www.menieres.org.uk/information-and-support/symptoms-and-conditions/menieres-disease [https://perma.cc/CW5P-8T5M].
[4] Flemmings v. Howard Univ., 198 F.3d 857, 860 (D.C. Cir. 1999).
[5] See id. at 861. By statute, individuals may be “disabled” if they have a disability, have a record of such an impairment, or if they are regarded as having such an impairment. 42 U.S.C. § 12102(2) (2014).
[6] 42 U.S.C. § 12102(2)(A) (2014).
[7] 29 C.F.R. § 1630.2(I) (2016).
[8] Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002).
[9] See Rohan v. Networks Presentations, 375 F.3d 266, 276 (4th Cir. 2004).
[10] See McGeshick v. Principi, 357 F.3d 1146, 1150 (10th Cir. 2004).
[11] 160 F.3d 446 (8th Cir. 1998).
[12] Id. at 448–49.
[13] Id. at 450 (Bright, J., concurring).
[14] See Benedict v. Eau Claire Pub. Schools, No. 97-2513, 1998 WL 60374, *1–2 (7th Cir. Feb. 10, 1998).
[15] Id. at *1.
[16] Id. at *11.
[17] McGuire v. Miami-Dade Cty., 418 F.Supp.2d 1354, 1363–64 (S.D.Fl. 2006).
[18] Id. at 1364.
[19] See id. at 1365 (“[T]he Court questions the duration of time Plaintiff is substantially limited in her ability to perform her work.”).
[20] Id. at 1364–65.
[21] See, e.g., Perkins v. Hook–SuperX, Inc., No. 05–cv–818, 2007 WL 1577751, *6 (S.D. Ohio May 30, 2007) (noting that whether a plaintiff’s hearing disability is substantially limiting is a “fact-intensive one” and “must be made on a case by case basis”); Bosket v. Long Island R.R., No. 00–CV–7352, 2004 WL 1305746, *4–5 (E.D.N.Y. June 4, 2004) (“[D]etermining whether a hearing impairment is substantial necessitates a comparison between the plaintiff and a non-impaired individual. Fact-intensive inquiries such as this often require resolution at trial.”); Connolly v. Bidermann Indus. U.S.A., Inc., No. 95 Civ. 1791, 1998 WL 305643, *5 (S.D.N.Y. June 9, 1998) ( “Whether plaintiff’s hearing disability ‘substantially limits’ one or more of plaintiff’s major life activities is an issue of fact to be decided at trial.”).
[22] See Brennan v. Naperville School Dist. 203, No. 04-c-2530, 2005 WL 3299347, *4 (N.D. Ill. Nov. 29, 2005).
[23] See Perkins, 160 F.3d at 449; id. at *6.
[24] Brennan, 2005 WL 3299347 at *2.
[25] Id. at *5.
[26] Id.
[27] Brown v. Cooper Tire & Rubber Co., No. 1:13-cv-176, 2015 WL 4477564, *1, 3 (N.D. Miss. July 22, 2015).
[28] Id. at *1.
[29] Spencer v. Nat’l City Bank, 732 F. Supp. 2d 778, 785 (S.D. Ohio 2010).
[30] Id. at 788–89.
[31] Id. at 788.
[32] See Rohan, 375 F.3d at 276; see also Brennan, 2004 WL 3299347 at *6 (finding sufficient evidence that the episodes of vertigo were disabling when they occurred but not between episodes).